Massachusetts Selectmen’s Association · GETTING TO YES: COLLECTIVE BARGAINING FUNDAMENTALS...

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Massachusetts Selectmen’s Association

GETTING TO YES: COLLECTIVEBARGAINING FUNDAMENTALS

Presented By:

KATHERINE HESSE ROCCO LONGOPartner, Murphy, Hesse, Toomey & Lehane, LLP Marshfield Town Administrator

Facilitator: COLLEEN CORONA

President, Massachusetts Selectmen’s Association and Chair, Town of Easton Board of Selectmen

January 22, 2011

Hynes Convention CenterBallroom C, Third Floor, Boston, MA


Preparation is Essential

Selection of the Team Training of the Board and Team Doing Your Due Diligence/Research Brainstorming/Free Thinking/Scenario Planning Developing A Comprehensive Strategy Setting Ground Rules


Preparation is Essential

Drafting Proposals Understanding The Negotiation Process – Duty to

Bargain in Good Faith Becoming Familiar with the Different Types of

Subjects of Bargaining: Mandatory, Permissive andIllegal

Knowing What You Can Do If You Reach Impasse Participating Successfully in Mediation Preparing for Next Time


Selection of Team Factors to Consider

What positions/capabilities/knowledge are needed? Effect of presence of members/majority of funding

body Experience and training in negotiations

N. B.: Bargaining in the public sector is similar inmany ways but also quite different from theprivate sector.

Availability Personality issues/temperament


Selection of Team

Consider carefully who should be at the table aspart of the team Town Administrator/Manager Department Head Labor Counsel Member(s) of the Board of Selectmen – The

Board should think about the pros and cons as itdetermines the extent to which it will delegatethis process


Training of the Team

The extent of training will depend somewhat on theknowledge and experience of the team. Rememberthe Unions devote extensive resources to trainingtheir bargaining agents – so should you.

Basic Training in Labor Relations Negotiations Training

Duty to Bargain Effective and Ineffective Techniques Dos and Don’ts



Understanding the Roles and responsibilities of The Board of Selectmen The Bargaining Team The Chief Spokesperson

Developing effective methods of interaction Among the team With the full Board With the Union teams Other interested parties



“Basic Training” Mandatory vs. Permissive vs. Illegal Subjects of

Bargaining Issue vs. Effects Bargaining Prohibited Practices Negotiation Jargon Effect of using phrases such as

We cannot afford….. Of course we will always keep the substation active OK

Importance of Chief Spokesperson Role


Doing Your Due Diligence: Research

Review by-law or charter provisions regardingcollective bargaining

Review all existing Town contracts Look for similarities and differences

Review contracts in neighboring communities Develop a list of comparable communities and review

those contracts; determine how to distinguish outliers Compare “apples to apples” within contracts Talk to your colleagues in other communities


Due Diligence: Know How you Stack Up

Do your homework on what neighboring towns arepaying

What benefits do they provide? Are you considering major changes to health

benefits, such as moving to GIC? How about work schedules? Other benefits: paid time off, details, education

incentives, longevity, uniform/cleaning allowance;differentials


Try to Envision the Future and What theTown Might have to do to Adapt Team must be aware of any impediments posed by the

contract or practice to future ability to act in the town’sbest interest

Review with town’s labor attorney any pendinglitigation including past grievances

Give serious thought to How can future litigation be avoided? How can flexibility to act be

preserved/accomplished? Think about the Town’s priorities.


Brainstorming/Free Thinking AboutFuture/Scenario Planning Develop a number of scenarios based on different

economic/funding assumptions Determine what changes may need to take place At these early initial stages, create an atmosphere

where administration will feel free to come forwardand brainstorm including “pie in the sky” ideas

Always plan for the worst


Develop A Negotiating Strategy

Experienced Labor Counsel will help Board its strategy Don’t get lost in the trees – keep your focus on the big

picture Important to look at a comprehensive strategy and consider

how discussions in one set of negotiations will affectanother, e.g., meeting with School Committee?

Do you/should you have staggered termination dates for thevarious collective bargaining agreements?

Have a clear understanding of items that require negotiatingv. items that do not require negotiations

Establish bargaining priorities


Develop A Negotiating Strategy

Know what the Town can afford Requires a meeting with financial officials Collector Treasurer – Town Accountant –

Finance Director Finance or Advisory Board Representative

Language is critical: Have Labor Attorney reviewand craft all proposals and counterproposals


The Importance of Process: Ground Rules

Attorney will draft proposed ground rules after consultationwith you

Topics could include: Who are the respective bargaining teams? Who will act as the chief spokesperson for each team? How and when proposals and counterproposals will be

made? When/how will meetings be scheduled? Cancelled? How about caucuses? Where will meetings be held? What time of day? Or night?


The Importance of Process: GroundRules, cont’d. For how long? Will others be allowed to attend? Will employees be paid/docked for time at negotiations? What is the effect of agreeing on an item? Reducing agreements to writing and initialing? Putting together a “MOA” once final agreement is reached. Need for ratification and funding – duty to recommend Pre-impasse press releases

The process is important – listen to your attorney.


Develop Proposals

The proposals you put forward are dependent onYour end goalYour strategy for getting to that goal

Your labor counsel should help you draft a set ofinitial proposals suitable to your needs.


Develop Proposals

Areas to consider: Management rights Grievance and arbitration procedure Past Practice Staffing Reductions in Force and layoffs Term of contract


Negotiating Tips From An ExperiencedTown Manager Everything has a price Does 0% = 0% always? You want to think/promote win-win negotiations

but recognize it is can be “lose-lose” withoutcareful planning and execution

Always keep the dialogue constructive andrespectful


Negotiating Tips From An ExperiencedTown Manager, cont’d.Some additional areas to consider: Longevity Sick leave buy back

Difficult to plan Cash payouts strain budget No proof benefit improves attendance

Biweekly pay Mandatory direct deposit for all employees


Negotiating Tips From An ExperiencedTown Manager, cont’d.

Any Board/Team member talking to any unionmember about negotiations

Any Board/Team member talking to press or publicabout negotiations

Relying on assumptions that may prove false orillusory, for example, adding one or more positionsto reduce overtime


Management Rights: Introduction

Generally speaking, the employer retains the rightto manage its organization except as restricted by acollective bargaining agreement.

A management rights clause contained in acollective bargaining agreement may reservespecific rights to an employer.

A zipper or scope clause can affect when eitherparty can force the other to bargain mid-contract.

An evergreen clause (about which more later) canlimit the employer’s right to implement changes.


Legal Background: The Duty to Bargain

The duty to bargain is found in Section 6 of M.G.L.c. 150E

It provides that an employer and union must: Meet at reasonable times (including meetings in

advance of the employer’s budget-makingprocess), and

Negotiate in good faith about wages, hours,standards of productivity and performance, andany other terms and conditions of employment.


Legal Background: The Duty to Bargain

Neither party is compelled to agree to a proposal, or to make a concession.

The obligation is to bargain in good faith toagreement or impasse.

The general rule is that upon reaching impasse, anemployer may implement its last position.


Legal Background: Subjects ofBargainingThree Categories of Bargaining Subjects

(1) Mandatory – a party may insist on its inclusionand the other party cannot refuse to discuss it.

(2) Permissive – neither party may insist onbargaining, but both sides may agree to bargain.

(3) Illegal – violates public policy.


Legal Background: Mandatory Subjectsof Bargaining Mandatory subjects of bargaining are wages,

hours, standards of productivity and performanceand other terms and conditions of employment.

Wages can include: Base pay Overtime Rate Incentive/bonus pay Premium pay Longevity pay Deferred wages or pensions/403(b)


Legal Background: Mandatory Subjects ofBargaining Hours of Work – including:

Starting time Quitting time Duration of Shift Overtime Practices Shift Bidding Practices Days Off Breaks / Meal Time


Legal Background: Mandatory Subjects ofBargaining Other Terms and Conditions of Employment - including: Benefits

Health Insurance Disability Life Insurance

Paid or unpaid time off – including: Vacation Holidays Sick Time Personal Time Leaves of Absence


Legal Background: Mandatory Subjects ofBargaining Standards of Productivity and Performance (e.g.,

class size)

Job Duties/Work Assignments

Work Rules

Attendance Policies

Discipline and Discharge

Layoffs/Reductions in Force/Bumping

Subcontracting/Bargaining Unit Work


Legal Background: Mandatory Subjects ofBargaining

Seniority

Drug Testing

Grievance and Arbitration

Union Dues/Union Security


Legal Background: Permissive Subjectsof Bargaining Permissive subjects of bargaining are those about

which neither party may insist on bargaining, butboth sides may agree to bargain or a party maywaive its right not to bargain by not being carefulnot to preserve its right not to bargain.

Permissive subjects are those which involve coremanagerial decisions.


Legal Background: Permissive Subjectsof Bargaining Examples of some matters which have been found

to be core managerial decisions under thecircumstances include: Whether to provide certain services to the public Whether to hire additional employees to do

bargaining unit work Whether to abolish or create positions Whether to reorganize/restructure


Legal Background: Permissive Subjectsof Bargaining Examples of subjects found to be permissive subjects of

bargaining under the circumstances include: Minimum manning decisions The loss of ad hoc or unscheduled overtime opportunities Discontinuing providing private police details at liquor

service establishments Using polygraph examinations in the investigation of

criminal activity by police officers School curriculum decisions.


Legal Background: Permissive Subjectsof Bargaining

Decisions that are outside the employer’s control,but the impact of such decisions generally must bebargained.


Legal Background: Illegal Subjects

Bargaining over “illegal” subjects of bargainingviolates public policy.

An example of a subject found to be an illegalsubject of bargaining was a parity provision.

A recent case involved an Evergreen Clause thatwould cause a CBA to continue beyond 3 years. SeeBoston Housing case.


Mandatory vs. Permissive Subjects

Balancing Test: Employer’s legitimate interests inmaintaining its managerial prerogative to effectivelygovern vs. impact on employees’ terms and conditions ofemployment

Factors the degree to which the subject has a direct impact on

terms and conditions of employment or whetherinstead it is far removed from employee’s terms andconditions of employment

whether the subject involves a core governmentaldecision


What are an Employer’s BargainingObligations? Decisional Bargaining – An employer has an obligation

to provide notice and an opportunity to bargain toresolution or impasse over the decision and impactbefore it makes a change to a pre-existing condition ofemployment, or implements a new condition ofemployment.Examples: Health Insurance Premium Percentage Contribution Work Hours Promotional Procedures


What are an Employer’s BargainingObligations? Impact Bargaining – An employer has an obligation to

provide notice and an opportunity to bargain to resolution orimpasse over the impact of the decision on mandatorysubjects of bargaining. Decision to reduce workforce is a core managerial

decision, and employer need not bargain over thedecision itself

However, the implementation of the decision will impactemployees’ wages, hours, and other terms and conditionsof employment, and must be bargained

e.g., method of accomplishing the reduction (layoffsvs. attrition), timing, terms of separation, etc.


Recent Case Law: Supreme JudicialCourt Boston Housing Authority v. National Conference of

Firemen and Oilers, Local 3, 458 Mass. 155 (2010) Decided by Supreme Judicial Court on October 22, 2010 An appeal of an arbitrator’s award that found that the

employer violated the parties’ collective bargainingagreement when it laid off sixteen employees

SJC finds that arbitrator exceeded the scope of hisauthority when ordered reinstatement of the employees.

An Evergreen clause extending a contract beyond threeyears is invalid under M.G.L. c. 150E, § 7(a)


Recent Case Law: Supreme Judicial Court

BHA case highlights several aspects of managementrights and impact bargaining: The parties’ collective bargaining agreement

contained a minimum staffing provision.Provisions such as this serve as an expresslimitation on an employer’s right to reduce force

The parties in this case met and exchangedproposals over the impact of the employer’sdecision to lay off employees


Recent Case Law: Supreme Judicial Court

The BHA case could have a significant impact onlabor relations going forward: Grievance and arbitration procedure provision

lapses at the expiration of contract Potential for parties to begin negotiating earlier

and settling quicker Union requests for bridge agreements Expected proposed legislation by unions to

overturn decision


Recent Case Law: Division of LaborRelations Response to BHA

Public employers are prohibited from making unilateralchanges in established conditions of employment thataffect mandatory subjects of bargaining both during theterm of the CBA and after it expires

If there is a conflict between expired contract languageconcerning a mandatory subject of bargaining and apractice that exists between the parties, it is likely thatthe Division would require the employer to continueprevailing practices regarding wages, hours, andworking conditions


Recent Case Law: DLR Response toBHA continued:

While the DLR has not ruled affirmatively, it isquestionable whether a contractual waiver ofbargaining rights would survive the expiration ofthe contract

Issue of whether employer obligated to arbitrategrievances after expiration of the contract is factspecific inquiry

Employer has continued obligation to continue duescheckoff practice after expiration of CBA


Recent Case Law: Division of LaborRelations Sheriff’s Office of Worcester County and NEPBA,

Local 555, 36 MLC 147, SUP-09-5462

Decided by the DLR on April 1, 2010

The issue in this case was whether the Sheriff’sOffice unilaterally implemented a new promotionpolicy for bargaining unit members without firstnotifying and bargaining with the Union in violationof M.G.L. c. 150E, §§ 10(a)(5) and 10(a)(1)


Recent Case Law: Division of LaborRelations Facts of Case:

The parties’ collective bargaining agreement contained aManagement Rights clause that contained the followinglanguage:

“[T]he County and the Sheriff will not be limited in anyway in the exercise of the functions of management andwill have retained and reserved unto itself the right toexercise, without bargaining with the Union, all thecustomary powers, authority and prerogatives ofmanagement and government, including but not limitedto the following items.”


Recent Case Law: Division of LaborRelations That clause was followed by 37 specific management rights that

included descriptions as well as the employer’s bargainingobligations (impact and/or decision)

Examples of these include: Management could make the determination of new employee

classifications and ranks; provided that the wages for suchclassifications and ranks would be subject to negotiations withUnion

Management reserved the right to increase, diminish, changeor discontinue operations in whole or in part, provided,however, the Sheriff negotiates over impacts of any directlayoff of officers resulting from action specified in agreement,prior to layoff


Recent Case Law: Division of LaborRelations Some of these 37 clauses contain limited bargaining

obligations, while others did not Examples of those that did not include:

The determination of the level of services to beprovided

The training of officers, including, but not limited toin-service and physical fitness training

The hiring, appointment or promotion of officers,including the determination of qualifications andrequirements for the position or rank


Recent Case Law: Division of LaborRelations Following the introductory paragraph and the 37

specific items, the parties included the followinglanguage:

“and the Sheriff will have the right to invoke theserights and make such changes in these items as theSheriff in his sole discretion may deem appropriatewithout negotiation with the Union; except to theextent expressly abridged by a specific provision ofthis Agreement.”


Recent Case Law: Division of LaborRelations The dispute in this case concerned the Employer’s

unilateral implementation of a promotional testingprocedure This implementation occurred after the Employer had

met with the Union and discussed input on a new testingprocess

The Employer and the Union set up a management andlabor committee to investigate the issue

After more than two years, the Sheriff instituted its newpolicy

The Union then filed a charge of prohibited practice


Recent Case Law: Division of LaborRelations As we have seen, the Division found that promotion

procedures are mandatory subjects of bargaining

Despite this, the Division found that the Sheriff did notviolate the law

The Sheriff successfully raised the defense of contractwaiver, arguing that the parties’ collective bargainingagreement gave them the right to implement the newpolicy


Recent Case Law: Division of LaborRelations The Division found that the Sheriff’s Management

Rights clause was specific as to the parties’ bargainingobligations

Even though the language was unambiguous, theDivision looked at the bargaining history anddetermined that it was clear that the Union hadspecifically waived its right to bargain about promotions The bargaining history showed that employer

received this language in exchange for a nearly 20%pay raise to bargaining unit members


Existing Work Rules: Is BargainingRequired?

“A public employer may alter proceduralmechanisms for enforcing existing work ruleswithout bargaining, provided [it] does not changeunderlying conditions of employment.”

City of Worcester, MUP-05-4409 (2007)


Existing Work Rules: Is BargainingRequired? Example: Sick Leave Monitoring (Town of Wilmington,

MUP-4688 (1983)) In an effort to better track sick leave, Fire Chief

developed a written form to be completed by all firefighters absent for one day or more upon their return towork.

Form contained questions pertaining to the reason forabsence, details of any medical treatment received, andthe ability of the absent fire fighter to perform regularduties.

Previously, employees using sick leave were required tocall in to report absences. By contract, Town couldrequire employees to provide physician’s certificationstating necessity for absence.


Existing Work Rules: Is BargainingRequired?

Division of Labor Relations held that the Town’sunilateral institution of reporting form was not a violationof the law, because it did not change any underlyingconditions of employment.

No change to criteria for granting sick leave No change to practice regarding submission of

doctor’s certification Form did not require any information Town could not

have required under the previously-existing workrules.

Simply provided Town a more efficient method ofenforcing work rules and tracking sick leave.


What Is Impasse?

The Division of Labor Relations generally finds thatparties have reached impasse only when the parties havenegotiated in good faith on bargainable issues to thepoint where it is clear that further negotiations would befruitless because the parties are deadlocked.

This requires an assessment of the likelihood of furthermovement by either side and whether they haveexhausted all possibility of compromise.


Impasse: Factors to Consider

The good faith of the parties in negotiations

The length of the negotiations

The importance of the issues as to which there is adisagreement

The contemporaneous understanding of the parties as tothe state of negotiations


Impasse: DLR Examples

Where one party indicates a desire to continue bargaining,Division finds the parties have not exhausted allpossibilities of compromise, and have not reachedimpasse.Comm. of Mass., Comm’r of Admin. & Finance, SUP-4075 (1999)

Where parties have bargained for over two years, andhave exchanged and rejected each others’ final offers,Division declares impasse despite union’s assertion that itwas “prepared to engage in further negotiations.”City of Worcester, MUP-05-4542 (2007)


Mediation

When and how can mediation be helpful? How is a mediator appointed? Can you choose what mediator to use? Do you have to agree with the mediator’s

recommendations? How does mediation differ from arbitration? What is interest arbitration? Can a Town ever get a fair break in arbitration?


Role of the Mediator

After a reasonable period of negotiation, the parties actingindividually or jointly may petition the DLR for thedetermination of an impasse and the initiation ofmediation

Upon receipt of this petition, the DLR will commenceinvestigation to determine if impasse exists

If impasse found, the DLR will appoint a mediator toassist the parties in reaching agreement (parties can alsomutually agree on mediator)

Mediator’s role is to assist the parties with productivedialogue on their disputes


Techniques Used By Mediators

Separate parties – fosters openness, allows mediatorto see areas of possible settlement

Encourage constructive communications

Keep parties focused on settlement alternatives

Offers information and suggestions


Anticipate Techniques to Bring Pressureto Bear Ballot Box Pressure or Threatened Pressure Publicity/Media Campaigns Work Stoppages including

Blue Flu Sick Outs Work to Rule Picketing

Increased “Noise” More grievances Possible charges of prohibited practice


It’s Never Over

After agreement is reached, the final MOA is subject toratification and funding.

Funding the agreement versus funding in each year of theagreement – legal and practical issues

What if it is not ratified? False assumption: Whew, a 3 year deal! We’re all done for

3 years. Need for training of supervisors in contract

implementation and administration Impact bargaining issues Need for preparation throughout the term of the contract


Conclusion: Be Prepared

Know the difference between mandatory andpermissive subjects of bargaining.

Be careful not to waive your right to refuse tobargain over permissive subjects.

Identify existing workplace rules and proceduresthat can be improved/enforced more efficiently,often with minimal bargaining.

Develop a coherent strategy. Select the right team, led or at least assisted by

qualified labor counsel.


Conclusion

Provide for training for the Board and the team Negotiating in good faith doesn’t mean “giving in” Be careful not to waive your management rights Review and strengthen your CBAs

Management rights clauses Termination clauses/“Evergreen” issues Zipper clauses Grievance and arbitration procedures

Preparation for next series of negotiations


An Ounce of Prevention is Worth aPound of Cure

Preventive maintenance is always easier thandamage control.


Questions?


Quincy Boston Springfield

Crown Colony Plaza 75 Federal Street One Monarch Place300 Crown Colony Drive Suite 410 1414 Main Street 1310RQuincy, MA 02169 Boston, MA 02210 Suite 1310R

Springfield, MA 01144

Tel: (617) 479-5000 Tel: (617) 479-5000 Tel: (888) 841-4850 Fax: (617) 479-6469 Fax: (617) 338-1324 Fax: (617) 479-6469

Massachusetts Selectmen’s Association · GETTING TO YES: COLLECTIVE BARGAINING FUNDAMENTALS...

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Transcript of Massachusetts Selectmen’s Association · GETTING TO YES: COLLECTIVE BARGAINING FUNDAMENTALS...